LGBTI equality and human rights in Europe and Central Asia

The Rights of Children Raised in Lesbian, Gay, Bisexual or Transgender Families: A European Perspective, 2008

This report documents the existing framework of legal protection of the rights of children in LGBT families at European level, analyses the many gaps in their protection, and makes recommendations for addressing these. 
(Published : December 2008)

A plethora of international and national laws aim to protect family life as a means of ensuring that children are raised in a stable and loving environment. Consequently, the extent to which a child’s family unit enjoys legal recognition has a considerable impact on that child’s enjoyment of his or her rights. As social acceptance of lesbian, gay, bi-sexual and transgender (LGBT) people improves, so more are entering into parenthood. It is imperative that the human rights of children raised in those families are recognised and protected on a basis of equality. This paper starts from the simple premise that it cannot be in the best interest of those children to leave their important relationships of care outside of the legal framework of rights and responsibilities that are specifically designed to protect their interests, simply on the basis of their birth status, or their parents’ sexual orientation or gender identity. ILGA-Europe believes that the question of the rights of children raised in LGBT families should form part of the wider dialogue about children raised in relationships based on love and care that fall outside of traditional marriage. The challenge is to ensure that all children enjoy human rights equally. In Section 2 of this report, we outline the international and European treaties relevant to the protection of children’s family rights. We note that the relevant laws are insufficiently clear and fail to offer children raised in LGBT families sufficient and equal protection. A number of European and international treaties recognise that ‘the family’ unit is central to the happiness and security of children and to the enjoyment of their fundamental rights. However, ‘the family’ of international law is poorly defined. Although the European Court of Human Rights (ECtHR) has made efforts to define the family in a way that is flexible, and accommodates relationships that are not based on marriage, its approach has tended to be influenced by the traditional nuclear family ideal. In particular, the ECtHR has had little to say about the rights of children raised in LGBT families. Consequently, it has largely been left to States to decide what legal recognition, if any, will be given to LGBT families and what protection children raised in these families will have. The lack of guidance at a European level means that the family rights those children enjoy at the national level vary considerably throughout Europe. 

In Section 3, we outline some of the specific problems that the inequalities in national and international laws can cause those children. In simple terms, the discriminatory treatment that the children of LGBT parents experience means for many that they are denied equal enjoyment of the family rights that international human rights law promises to all children equally. This is clearly not consistent with the child’s best interests, which the Convention on the Rights of the Child states should be the primary consideration in all actions concerning them.